P. V. NIDHISH & ORS. versus KERALA STATE WAKF BOARD & ANR.

Citation: [2023] 4 S.C.R. 547 · Decided: 28-04-2023 · Supreme Court of India · Bench: S. RAVINDRA BHAT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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P. V. NIDHISH & ORS.
v.
KERALA STATE WAKF BOARD & ANR.
(Criminal Appeal No. 309 of 2023)
APRIL 28, 2023
[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
Wakf Act, 1995 – s.52A added by 2013 amendment – Penal
provision – Operation of, if retrospective – Held: No – Giving effect
to a penal statute so as to cover past acts is a proscribed action in
law – Therefore, s.52A cannot cover cases where leases of wakf
properties had expired in the past and where the tenant or lessee
was in physical possession and facing civil proceedings for eviction
at the time the amendment of 2013 came into force – Interpretation
of Statutes.
Wakf Act, 1995 – s.3(ee) added by 2013 amendment –
“Encroacher” – Interpretation – Appellants were holding the
premises and civil proceedings for their eviction were pending when
the amendment came into force – In view of the dispute over the
termination of their tenancy, appellants if became “encroachers”
after the amendment became effective – Held: No – The expiry of
leases, or other arrangements, by efflux of time or their valid
terminations, in the past, cannot be construed to mean that such
lessees become “encroachers” – Nor would past tenants whose
possession is disputed, and eviction proceedings pending against
them before a court, fit that description u/s.3(ee) – The consequences
of such an interpretation would be too startling; even before an
adjudication of the validity of termination (of leases, for instance),
tenants holding over would be exposed to prosecution – There is no
allusion to “continuing offence” or any expression suggesting that
such a term (mentioned in s.472, CrPC) would be attracted to actions
which commenced in the past, i.e., before the amendment of 2013
came into force – To hold otherwise, would be depriving the
appellants of their rights u/Article 20(1) which cannot be
countenanced – Impugned judgment set aside – Code of Criminal
Procedure, 1973 – ss.472, 482 – Constitution of India – Article 21.
[2023] 4 S.C.R. 547
547
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SUPREME COURT REPORTS
[2023] 4 S.C.R.
Words & Phrases – “Whoever alienates or purchases or takes
possession of” in s.52A, Wakf Act – Discussed – Wakf Act, 1995 –
s.52A.
Allowing the appeal, the Court
HELD: 1.1 In the present case, it is undeniable that the
appellant came into possession even before the wakf was created;
before even the Wakf Act, 1954 was enacted (although the precise
date is unclear and could be a matter of dispute). It is, however,
sufficient to notice that in an interpleader suit, the appellants
were permitted to pay rents to the third defendant in the suit.
They were holding the premises when the amendment came into
force; indeed, a proceeding purporting to evict them was
unsuccessfully initiated before the amendment. Another one was
commenced and was pending after it came into force. In these
circumstances, could it be said that the dispute over the
termination of their tenancy, resulted in their becoming
“encroachers” after the amendment became effective? [Para
21][562-C-E]
1.2 The expiry of leases, or other arrangements, by efflux
of time or their valid terminations, in the past, cannot be construed
to mean that such lessees become “encroachers”. Nor would
past tenants whose possession is disputed, and eviction
proceedings pending against them before a court, fit that
description under Section 3 (ee). The consequences of such an
interpretation would be too startling; even before an adjudication
of the validity of termination (of leases, for instance), tenants
holding over would be exposed to prosecution. There is no
allusion to “continuing offence” or any expression suggesting
that such a term (mentioned in Section 472 Cr. PC) would be
attracted to actions which commenced in the past, i.e., before
the amendment of 2013 came into force. To hold otherwise, this
court would be resorting to an interpretation that directly deprives
the appellants of their rights under Article 20(1) - a consequence
that cannot be countenanced. The plain text of that provision
forbids such an interpretation, and the authorities on that aspect
clearly indicate that giving effect to a penal statute so as to cover
past acts is a proscribed action in law. Therefore, the expression
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“Whoever alienates or purchases or takes possession of”, which is
the opening phrase of Section 52A, cannot be read or construed
to include possession taken in the past, which resulted in
continued possession, when the provision was

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